92 Decision Citation: BVA 92-02111
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-47 942 ) DATE
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THE ISSUES
1. Entitlement to service connection for a low back
disability, including a lumbosacral strain, lumbar syndrome,
and postoperative residuals of a diskectomy.
2. Entitlement to service connection for sinusitis.
3. Entitlement to service connection for tinnitus.
4. Entitlement to service connection for a psychiatric
disability, including major depression.
5. Entitlement to service connection for headaches.
6. Entitlement to an increased (compensable) evaluation for
defective hearing.
ATTORNEY FOR THE BOARD
M. F. Halsey, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1971 to
August 1975.
This matter came before the Board on appeal from a May 1991
rating action of the Jackson, Mississippi, Regional Office.
No rating actions prior to this May 1991 decision have been
taken. A notice of disagreement was received from the
veteran on July 3, 1991, and a statement of the case was
issued on July 31, 1991. The veteran's substantive appeal
was received on October 18, 1991. The case file was
received at the Board of Veterans' Appeals on November 7,
and docketed for consideration on November 8, 1991.
Although the issues of entitlement to service connection for
an ingrown toenail and residuals of a right shoulder injury
were developed by the originating agency for appellate
review, the veteran has not submitted any arguments
regarding these issues on appeal. Consequently, the Board
has not considered them.
REMAND
The United States Court of Veterans Appeals has consistently
required the Board of Veterans' Appeals to "...identify
those findings it deems crucial to its decision and account
for the evidence which it finds to be persuasive or
unpersuasive." Gilbert v. Derwinski, U.S. Vet. App.
No. 89-53, slip op. at 12 (Oct. 12, 1990). Additionally, it
should be pointed out that, as the Board undertakes to
analyze the credibility or probative value of the evidence,
it is prohibited from interjecting its own medical opinion.
Colvin v. Derwinski, U.S. Vet. App. No. 90-196 (Mar. 8,
1991).
In the instant case, the evidence available in the case
file, including the veteran's service medical records,
presents medical questions which must be answered in order
for the Board to properly analyze the probative value of the
evidence. The Board notes that an orthopedic evaluation
completed by the Department of Veterans Affairs, hereinafter
VA, in February 1991, showed that the veteran had a chronic
lumbar syndrome. This is nearly identical to the assessment
made following an orthopedic evaluation conducted during
service (November 6, 1973). While other service medical
records show that the veteran was seen repeatedly for
complaints of low back pain and comments were made that he
had no significant orthopedic pathology (see the March 4,
1974 report), it seems apparent from the fact that the
veteran has undergone a lumbar diskectomy (1984) that he
indeed has experienced some sort of orthopedic pathological
process. Whether this disease process had its onset or was
aggravated during military service is the question upon
which this case turns.
The United States Court of Veterans Appeals has indicated
that obtaining a medical opinion on questions similar to
this is an appropriate course to take pursuant to the VA's
duty to assist under 38 U.S.C. § 5107(a) (1989) (formerly
38 U.S.C. § 3007(a), redesignated in 1991). See Moore v.
Derwinski, U.S. Vet. App. No. 90-41 (Jul. 22, 1991), a copy
of which is attached. Since the Board must rely on
independent medical evidence and because the evidence of
record currently does not provide an answer to the medical
question posited above, further development of this case is
necessary.
The reasons set forth above for remanding this case on the
issue of entitlement to service connection for a back
disability are also applicable to the veteran's claim of
entitlement to service connection for headaches. Several
record entries made during service (August and September
1971, May 7, 1973, and the veteran's July 1975 separation
examination) refer to complaints of headaches. Because the
neurologic examination report prepared by the VA in February
1991 shows that the veteran has had headaches for
approximately 20 years, the Board believes that further
development by way of a medical opinion is necessary. See
Moore, supra.
In light of the discussion above, the case is REMANDED for
the following actions:
1. A neurologist should be asked to
review the available evidence of record,
particularly the veteran's service
medical records, and provide an opinion
as to whether the vascular headaches
diagnosed by the VA in February 1991 are
in any way related to the complaints of
headaches documented in service.
2. After obtaining the necessary consent
form, any records documenting surgical
procedures on the veteran's back in 1984
and 1988 should be obtained. An ortho-
pedic specialist and neurologist should
be asked to review the evidence of record,
particularly the veteran's service medical
records, and provide an opinion as to
whether the veteran's currently diagnosed
lumbar syndrome with postoperative resid-
uals of a diskectomy can be said to be
related to any complaints or findings
made during service. (The originating
agency should undertake any additional
development deemed necessary by any of
these physicians in order for them to
formulate an opinion.)
3. The originating agency should take
adjudicatory action based on the evidence
obtained pursuant to the development
sought in paragraphs 1 and 2 above.
Thereafter, the veteran and his represent-
ative should be provided a supplemental
statement of the case if the benefits
sought are not granted.
After the veteran and his representative have been given an
opportunity to respond to any supplemental statement of the
case, the claims file should be returned to this Board for
further appellate review. No action is required by the
veteran until he receives further notice. The purpose of
this REMAND is to procure clarifying data and to comply with
governing adjudicative procedures. The Board intimates no
opinion, either legal or factual, as to the ultimate
disposition of this claim.
(Consideration of the issues not affected by this REMAND
decision is deferred pending completion of the development
sought herein.)
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DANIEL J. STEIN U. H. ANG, M.D.
38 U.S.C. § 7102(a)(2)(A) (1989) (formerly § 4002(a)(2)(A),
recodified in 1991) permits a Board of Veterans' Appeals
Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting
assignment of an additional Member to the Section when the
Section is composed of fewer than three Members due to
absence of a Member, vacancy on the Board or inability of
the Member assigned to the Section to serve on the panel.
The Chairman has directed that the Section proceed with the
transaction of business, including the issuance of decisions,
without awaiting the assignment of a third Member.
Under 38 U.S.C. § 7252 (1989) (formerly § 4052, redesignated
in 1991), only a decision of the Board of Veterans' Appeals
is appealable to the United States Court of Veterans Appeals.
This remand is in the nature of a preliminary order and does
not constitute a decision of the Board on the merits of your
appeal.